Wednesday, November 9, 2011

Father retains custody on appeal.

Because the record contained ample support for the trial court's decision, the court affirmed the trial court's order affirming the referee's decision to grant primary physical custody to the plaintiff-father. The parties' minor child was born in 9/06. The trial court entered a final parenting time order in 1/09, which granted the parties joint legal custody with the defendant-mother receiving primary physical custody. In 9/10, defendant's mother, S, petitioned to be appointed temporary guardian of the child. At the 10/10 hearing on her petition, S testified that defendant had not lived with her for the previous two months, but that she had not permanently moved away. Defendant left the parties' son with S, while she stayed 180 miles away with her new husband. S testified, however, that defendant was once again living with her. Plaintiff moved to modify custody in 12/10, alleging that defendant did not reside with her mother, and left the minor child with S. Defendant argued that the trial court did not have authority to revisit the custody arrangement. S testified that defendant had not lived with her for two months before the guardianship hearing. Defendant agreed, and also admitted that she moved out again after that hearing for another two months. Plaintiff testified that he had not seen defendant or been aware that she was in town during that period other than for court dates. Thus, there was ample evidentiary support for the trial court's finding that "defendant had essentially abdicated her role as custodian of the minor child. This factual finding was not against the great weight of the evidence." Also, that finding constituted both proper cause and a change of circumstances. "Defendant's choice to move away from her son was a change in the conditions surrounding the custody of the minor child. The fact that the child was not in the day-to-day care of either of his parents was relevant to a number of the best interest factors, including (a) the love, affection, and other emotional ties between child and parent, (b) the capacity of defendant to give the child love, affection, and guidance and contribute to the child's education, and (d), the length of time the child lived in a stable environment." "Defendant's extended absence was also likely to have a significant impact on the child's well-being." The trial court noted that defendant married a registered sex offender and that this formed a basis to revisit the earlier order. This was supported by the parties' stipulation. "Given that defendant had primary physical custody of the child by virtue of the earlier order, and especially given that testimony was presented that the new husband could not be alone with the parties' minor child, that fact alone would support a finding that the circumstances surrounding custody had changed to such an extent that it did, or could have a significant effect on the child's well-being." The court held that the trial court's finding was not against the great weight of the evidence. Thus, the trial court was justified in finding both a change of circumstances and proper cause, and was free to consider a change of custody.

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